| Commentary

(3) Construing or re-writing?

| Commentary

(3)     Construing or re-writing?

A line is however to be drawn between interpreting the contract so as to give effect to what the parties intended, and rewriting the clause so as to make enforceable that which would otherwise not be enforceable. The former is permissible; the latter is not. The court may interpret the agreement made by the parties; it must not (re)make an agreement for them. Any such radical expansion of the court's powers at common law would have to come from legislation, as has been done in New Zealand (see s 83(1)(b) of the Contract and Commercial Law Act 2017). It must never be forgotten that the real sanction behind covenants in restraint of trade is the 'terror and expense of litigation' (Mason v Provident Clothing and Supply Co Ltd [1913] AC 724; HL, per Lord Moulton). The employee will be more terrified than the employer, and the employer may

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